Former Illinois Attorney General Roland Burris (right) speaks as former Illinois Gov. Rod Blagojevich looks on during a news conference on Tuesday, Dec. 30, 2008, in Chicago. Burris could face charges that he committed perjury on Jan. 8, 2009, when he didn’t fully disclose contacts he had with Blagojevich or the ex-governor’s advisers before his appointment to Illinois’ vacant Senate seat. (AP photo/M. Spencer Green)
CHICAGO — With the impeachment of a governor, Illinois has already had more political fireworks this year than it has seen in decades. Could the perjury trial of a U.S. senator be next?
Sen. Roland Burris could face charges that he lied under oath on Jan. 8 when he didn’t fully disclose contacts he had with Gov. Rod Blagojevich or his advisers before he was appointed to President Barack Obama’s former Senate seat, legal experts say.
But as the clamor escalated last week, those experts said that perjury is a tricky and hard-to-prove charge, and not enough is known at this point to say whether a full-fledged investigation is warranted — let alone an indictment.
“Those who say this is a slam-dunk perjury case are wrong,” said Patrick M. Collins, who headed the team of federal prosecutors that sent former Gov. George Ryan to prison. “Those who say this is not a perjury case are premature.”
Collins, now in private practice, successfully prosecuted several perjury cases, including that of Ryan’s former top aide, Scott Fawell.
He said prosecutors weighing whether to conduct a perjury investigation might want to study FBI wiretaps that led to now-pending fraud and bribery charges against Blagojevich, who appointed Burris on Dec. 30, 2008, and was booted out of office just a few weeks later. What, if anything, Burris may have said on the tapes could be crucial.
U.S. Attorney Patrick J. Fitzgerald made similar tapes available to state lawmakers as evidence in the impeachment case against Blagojevich.
American politics has spawned some spectacular perjury cases. The biggest was probably that of former State Department official Alger Hiss, convicted in 1950 amid still disputed claims that he was involved in Soviet espionage.
Fitzgerald personally prosecuted former Vice President Dick Cheney’s chief of staff, I. Lewis “Scooter” Libby, for lying to a grand jury in Washington’s CIA leak case.
But perjury cases are not common because they are notoriously hard to prove.
For one thing, vague, fuzzy, ambiguous, evasive or incomplete answers under oath may be frustrating and infuriating, but they aren’t perjury. It has to be an intentional misstatement of a material fact — in other words, an outright lie.
Some of Burris’s testimony Jan. 8 before the House impeachment committee appears to fall into the fuzzy or vague category. He has been saying he “was not given the opportunity” to mention certain conversations because the questioning was fast-paced and the questioners changed the subject frequently.
Prosecutors must also prove the defendant intended to lie. It doesn’t count if he merely had a brain cramp or suddenly got tongue-tied on the witness stand.
“They are always hard cases to make because the question of whether the defendant had the intent to lie is critical,” said David Yellen, dean of the Loyola University law school and an authority on criminal law.
“Based on what we know today, the chances of Mr. Burris being successfully prosecuted for perjury are slim to none,” he said.
Burris’s first statement about his relations with the Blagojevich administration before his appointment came in an affidavit presented to the impeachment committee. He said he had no contact with anyone about the seat until Blagojevich attorney Samuel E. Adam approached him about it.
Under questioning by state Rep. Jim Durkin, R-Western Springs, Burris also told the panel that he had spoken with some “friends” and Lon Monk, a lobbyist and former top aide to Blagojevich.
But a fresh affidavit dated Feb. 4 said that even before the election, the governor’s brother, Robert Blagojevich, asked him to raise funds. And in one of two phone calls between them after the election, Burris said he told the brother he couldn’t raise funds for the governor because he was interested in the seat.
Then, in Peoria, last Monday night, he told reporters he had tried to raise money for Blagojevich but had been unable to do so.
Critics say that means the Sangamon County state’s attorney’s office, which now has the Jan. 8 transcripts, must determine whether a perjury investigation is warranted and launch one if it is.
“I think all of us believe that Roland Burris lied before the committee and we should not just shrug our shoulders and say, ‘That’s bad,’ and let it go,” Durkin said.
Even if Burris is charged, any trial might not take place until after he is out of the Senate. There are less than two years remaining in the Senate term and he could face a battle to be elected if he ran for a full term in 2010.
Meanwhile, new Gov. Pat Quinn and a number of Illinois newspapers have called for Burris to resign. And he could still be expelled by the Senate if it finds that his behavior was improper. The Senate Ethics Committee has launched a preliminary investigation to determine whether to pursue the matter.
Under the Constitution, the Senate has the authority to expel its members for “disorderly behavior” by a two-thirds vote. It hasn’t done so since July 1861 when, with the Civil War raging, it expelled 10 Southern senators who were absent.
Since then, the Senate has expelled no members, although the Ethics Committee recommended the ouster of two senators, Bob Packwood, R-Ore., in 1995 and Harrison Williams, D-N.J., in 1981.
Packwood was accused of making unwanted sexual advances to 17 female employees and colleagues, solicited jobs from lobbyists for his former wife and altered his personal diaries to obstruct an ethics investigation. Williams was convicted of taking bribes in the FBI’s Abscam sting operation. Both resigned before they were expelled.
The Senate did invalidate the election of Sen. William Lorimer, an Illinois Republican who was chosen by state lawmakers. The Senate in 1912 found that “corrupt methods and practices were employed in his election.”